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2005 DIGILAW 197 (CAL)

SRIMANTA BANERJEE v. ASHOKA DAS

2005-03-22

AMIT TALUKDAR

body2005
AMIT TALUKDAR, J. ( 1 ) FOR quashing the proceedings of Case No. 792c/02 pending before the learned Chief Judicial Magistrate, Howrah the present petitioner who has been arrayed along with three others in the said proceedings on the basis of a' Petition of Complaint filed by the Opposite Party No. 1 has moved his application. ( 2 ) SHRI Sudipto Moitra learned senior Counsel duly assisted by Shri subhasish Pachhal canvassed several points in support of the prayer for quashing. Shri Moitra at the very outset submitted that the Petition of Complaint does not make out any case whatsoever against the petitioner. According to shri Moitra, in fact, there is no whisper of any allegation against the petitioner in the said Petition of Complaint; and neither any overt act has been attributed to the petitioner nor any role played by the Petitioner in the Complaint has been described; as such, the learned Chief Judicial Magistrate while taking' cognizance on the basis of the Petition of Complaint and issuing process against the petitioner completely misdirected himself both in law and in fact. ( 3 ) SECONDLY, Shri Moitra submitted that a plain reading of the Initial ejahars of the Complainant and her witnesses would show that the complicity of the petitioner does not transpire in the alleged occurrence, which persuaded her to file the Petition of Complaint. In fact, it was a mechanical exercise of power by the learned Chief Judicial Magistrate while taking cognizance and issuing process against the Petitioner. Thirdly, Shri Moitra submitted barring the fact that the petitioner was attached to the Police Station as Sub-Inspector he had no role to play in the alleged incident. As such, the arraignment of the petitioner in the present case would be an abuse of process of law. Fourthly, shri Moitra submitted that the petitioner hereinabove was not in any way either connected with the investigation of the case in connection with which the son of the Opposite Party No. 1 was arrested or he was present when the incident of death of her son took place in the police station. Fourthly, shri Moitra submitted that the petitioner hereinabove was not in any way either connected with the investigation of the case in connection with which the son of the Opposite Party No. 1 was arrested or he was present when the incident of death of her son took place in the police station. Fifthly, Shri moitra submitted there has been a serious procedural illegality as after taking cognizance the learned Chief Judicial Magistrate resorted to the provisions of Section 202 of the Code of Criminal Procedure (for short, the said Code) and thereafter issued process which according to Shri Moitra, was in violation of Section 200 of the said Code and for this purpose the entire proceeding was liable to be quashed. ( 4 ) LASTLY, Shri Moitra referred to the Ejhar of the Autopsy Surgeon (page-83 of the Application) and referred to Injury No. 11 spoken of by the said Surgeon and submitted that the said injury speaks of suicidal death and he prayed for quashing the entire proceeding on the basis of the aforesaid position. ( 5 ) SHRI Swapan Kumar Mallick appearing for the State opposed the submissions of Shri Moitra. Shri Mailick submitted that pursuant to the process issued against the petitioner and the others they have already entered appearance and are on existing Bail. At this juncture they should not have any grievance and whatever points the petitioner feels are in his favour, according to Shri Mallick, the same can be taken by the petitioner after he enters into his defence at the stage of Section 234 of the said Code. ( 6 ) REFERRING to the decision of Stale of Orissa v. Debendra Nath padhi, (2004)8 Supreme 568 : (2005)1 C Cr LR (SC) 487 Shri Mallick submitted that at this stage the Court cannot look into any documents to form an opinion about the innocence of the petitioner. This is not the appropriate stage. according to Shri Mailick. ( 7 ) REFUTING the submission of Shri Moitra that the petitioner was not directly involved in the process which led to the death of the son of the opposite Party No. 1 in the Bally Police Station Shri Mallick submitted that the allegation of criminal conspiracy under Section 120b of the Indian Penal code is very much there against all the accused persons including petitioners. Shr. Shr. Mallick referred to the provisions of Section 10 of the Evidence Act (hereinafter referred to as the said Act) and submitted that this question that the petitioner was not directly connected with the commission of offence would Pale into insignificance by virtue of Section 10 of the said Act and as there cannot be any direct evidence of conspiracy it has to be inferred from the circumstances and this is not the stage for deciding the same. ( 8 ) SHRI Mallick prayed for dismissing the application having no merit. ( 9 ) SHRI Subhasish Roy duly assisted by Shri Biplab Dey for the opposite Party No. 1 referred to the Petitioner of Complaint and read out from the same. He submitted that the averments made therein made out a prima facie case against the petitioner and the others. As such, it would not be prudent to quash the proceedings on the basis of the submission of Shri moitra which has no bearing in view of the glaring allegations made therein. He submitted that the only son of the Opposite Party No. 1 was taken away by the Police Personnel and subsequently shown arrested by the Bally Police station where he was beaten up in the lock-up as a result of which he died. Shri Roy submitted that the learned Chief Judicial Magistrate rightly took cognizance and had issued process against the Petitioner and others in respect of the offence of Sections 302, 342, 343, 330, 331 120b/34 of the indian Penal Code and this Court should not interfere with the same in the absence of any illegality or any other infirmity. ( 10 ) SHRI Roy took serious exception to the contents of Annexure-'e' of this Application which contained computerized extract of the G. D. entry and submitted that by virtue of his position the Petitioner illegally obtained the contents of the same which was not otherwise available to him in the absence of obtaining Certified Copy thereof. Shri Roy further submitted that there has been interpolation in the G. D. Entry and the Lock-up Register and the Petitioner was involved with the said process. Shri Roy further submitted that there has been interpolation in the G. D. Entry and the Lock-up Register and the Petitioner was involved with the said process. He further submitted that after the Petitioner obtained an order of Anticipatory Bail from the learned Sessions Judge without giving Notice to the Opposite Party No. 1, a prayer for canceling the same is pending before a Division Bench of this Court being numbered as C. R. M. No. 8217 of 2004 and Shri Roy on the basis of his submission prayed for dismissing the Application. ( 11 ) IN Reply, Shri Moitra submitted that it was not a case of common intention but in order to attract the elements of criminal conspiracy there has to be a specific case made out against the Petitioner and in the absence of which Section 10 of the said Act cannot come into play. ( 12 ) THIS Court has carefully heard the submissions made at the Bar. This Court finds that on the basis of the Petition of Complaint filed by the opposite Party No. 1 the learned Chief Judicial Magistrate took cognizance in respect of the case and before proceeding further by his Order dated 25. 6. 2002 felt that the witnesses were required to be examined. After having examined as many as 15 witnesses the learned Chief Judicial Magistrate after discussing the same came to a prima facie finding that the Petitioner and the other accused persons were responsible for causing the death of the only son of the Opposite Party No. 1 while he was in Police Custody at Bally police Station and accordingly, in terms of Section 204 (1 ) (b) of the said Code issued Warrant of Arrest against the accused. ( 13 ) THEREAFTER, it is found that the Petitioner along with other accused persons obtained Anticipatory Bail, behind the back of the Complainant as submitted at the Bar and intimated the same to the learned Chief Judicial magistrate, Howrah whereupon on 28. 9. 2004 they were enlarged on ad interim bail which was subsequently confirmed on 7. 12. 2004 and ultimately on 6. 1. 2005 the case was committed to the Court of Sessions as the learned chief Judicial Magistrate found :". . . there is sufficient ground for proceeding with the case under Section 302/120b, I. P. C. . . . . . . 12. 2004 and ultimately on 6. 1. 2005 the case was committed to the Court of Sessions as the learned chief Judicial Magistrate found :". . . there is sufficient ground for proceeding with the case under Section 302/120b, I. P. C. . . . . . . " ( 14 ) TO appreciate the prayer of Shir Moitra for quashing the Petition of Complaint it has to be understood in the context of the stage of the case where it is. The learned Chief Judicial Magistrate by his Order dated 6. 1. 2005 in Case No. 792-C of 2002 has already committed the case to the Court of sessions in terms of Section 209 of the said Code after complying with the provisions of Section 208 of the said Code. This is a stage where the learned chief Judicial Magistrate has already ceased to be in existence so far as the proceedings of Case No. 792-C of 2002 is concerned as after committing the case he becomes functus officio. ( 15 ) AFTER appreciating this position it would be profitable to proceed further and to see the contents of the Petition of Complaint vis-a-vis the Initial ejahar. ( 16 ) A plain reading of the said Petition of Complaint in conjunction with the detailed Initial Ejahars of at least 15 witnesses examined by the learned Chief Judicial Magistrate shows that there are sufficient materials against the Petitioner and the other acpused persons. Rightly the learned chief Judicial Magistrate had issued Warrant of Arrest and passed the Order of commitment in terms of Section 202 First proviso of the said Code and he rightly proceeded to commit the case to the Court of Sessions. This Court finds that the learned Chief Judicial Magistrate took great care and examined every possible materials to satisfy itself before proceeding to commit the case to the Court of Sessions. ( 17 ) THIS Court feels that further discussion of the nature of materials, as found in the Petition of Complaint and the Initial Ejahars. would not be proper at this stage as the Petitioner along with the other accused persons have to face the Trial in terms of the Order of commitment. ( 17 ) THIS Court feels that further discussion of the nature of materials, as found in the Petition of Complaint and the Initial Ejahars. would not be proper at this stage as the Petitioner along with the other accused persons have to face the Trial in terms of the Order of commitment. Lest it may prejudice the accused during trial and it may have some unconscious effect on the mind of the trial Court this Court does not wish to go into further details with regard to the nature of allegations. Suffice it to say there are sufficient materials to warrant the trial of the accused persons in respect of the allegations contained in the Petition of Complaint along side the Initial ejahars. ( 18 ) THAT is one aspect of the matter so far as the facts are concerned. ( 19 ) THE argument of Shri Moitra that the learned Chief Judicial magistrate after taking cognizance resorted to the provisions of Section 202 of the said Code without complying the provisions of Section 200 of the said code requires some discussion. ( 20 ) TRUE, at the very out set the learned Chief Judicial Magistrate took cognizance and thereafter directed the petitioner to produce all her witnesses and it is thereafter a Warrant of Arrest was issued and the Order of Commitment was passed. It would be at best a very hyper-technical illegality in taking cognizance at first, as suggested by Shri Moitra before directing the Petitioner to produce all her witnesses for the purpose of examining them before committing the case to the Court of Sessions. Afterall, taking of cognizance arises as soon as the learned Magistrate applies his judicial mind over a bundle of facts; it neither has any esoteric nor mystic meaning as has been decided by the Supreme Court long many years ago. That apart, even if for argument's sake it is accepted, as suggested by Shir Moitra, that this has occasioned an illegality in the humble view of this Court it is at best an irregularity, and cannot affect the subsequent Orders passed by the learned chief Judicial Magistrate which has culminated in the commitment of the proceeding to the Court of Sessions in the absence of any manifest prejudice to the accused. ( 21 ) THE objection of Shri Moitra has to be viewed in the light of the provisions of Section 465 (1) of the said Code, which is quoted hereinbelow :"465. Finding or sentence when reversible by reason of error, omission or irregularity,- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. " (2) * * * * * ( 22 ) A plain reading of the same shows that any order passed-by a court of competent jurisdiction shall not be reversed by a Court in revision either on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code. ( 23 ) IF the objection of Shri Moitra is read in the line of the subsequent provisions of Section 465 (1) of the said Code, this Court feels that the same has absolutely no merit and requires no consideration. ( 24 ) SO far as the documents that have been annexed with the revisional Application this Court is extremely afraid that the same cannot be looked into while acceding to the prayer of quashing it is now well-settled that on the basis of Annexures and accompaniments in an Application the merit of the same cannot be decided by a Revisionai Court. ( 25 ) APART from the fact, as pointed out by Shri Roy for the Opposite party No. 1 that how could the Petitioner obtain the computerized version of the said entries, this Court feels that Shri Mallick was right in his submission that at this stage the same cannot be looked into. ( 26 ) THE decision of State of Orissa v. Debendra Nath Padhi (supra) referred to by Shir Mallick has square application. ( 26 ) THE decision of State of Orissa v. Debendra Nath Padhi (supra) referred to by Shir Mallick has square application. Since the order of commitment has been passed now it is only left to the accused persons to appear before the Court of Sessions and after a Charge has been framed on the basis of the materials which have been produced on behalf of the Opposite party No. 1 all the points canvassed in this Application can be taken by them after they enter upon their defence at the stage known to law and this is not the apposite opportune moment for such consideration. This Court finds sufficient force in the argument of Shri Mallick in this context. ( 27 ) SIMILARLY, the argument of Shir Moitra with regard to the nature of injury, particularly with reference to Injury No. 11, as found by Autopsy Surgeon (P. W. 15), as to whether the same was suggestive of being suicidal in nature is a question which should not be decided at this stage. Unless evidence is recorded the said question cannot be gone into in the present stage. ( 28 ) BEFORE parting, the agony of Shri Moitra with regard to the question that the Petitioner barring the fact was attached to the Bally Police Station at the relevant time when the lock up death took place had no role to play this court feels it would be inappropriate to even discuss the said issue. The petition of Complaint makes out. read alongside with the Initial Ejahars, a complete case of custodial death and the role of the petitioner cannot at all be excluded from the act which resulted in the death of the only son of the opposite Party No. 1, who, as has been deposed by the witnesses in the initial Ejahars, was found to be absolutely hale and hearty at the time of his taking away by the Police Personnel. Here also Shri Mallick is right that level of conspiracy has to be inferred from the circumstances and will be decided on the basis of the evidence. ( 29 ) ACCORDINGLY in the light of what has been discussed hereinabove this Court feels that there is no merit in the application and the same has to be dismissed. It is now only proper that the accused persons should forthwith submit themselves before the learned Sessions Judge. ( 29 ) ACCORDINGLY in the light of what has been discussed hereinabove this Court feels that there is no merit in the application and the same has to be dismissed. It is now only proper that the accused persons should forthwith submit themselves before the learned Sessions Judge. Howrah in terms of the Order of commitment passed by the learned Chief Judicial Magistrate. ( 30 ) THE learned Sessions Judge, Howrah wili, after appearance of the accused persons, proceed with the Trial with utmost dispatch by retaining the case in his own File. ( 31 ) NEEDLESS to say that the disposal of this Application will not have any bearing on the merit of the Trial as the observations made hereinabove would be deemed for the purpose of proper disposal of the present Application. ( 32 ) REVISIONAL Application dismissed. ( 33 ) AFTER this Order was dictated and pronounced in the open Court learned Counsel for the Opposite Party No. 1 submits that the Order may be communicated by Special Messenger to the Court of the learned Sessions judge, Howrah. ( 34 ) OFFICE is directed to send down a copy of this Order to the learned sessions Judge, Howrah as prayed for. ( 35 ) AFTER the aforesaid Order was passed the learned Counsel for the opposite Party No. 1 prays for Xerox Certified Copy of the Order immediately. ( 36 ) OFFICE is directed to give a Xerox Certified Copy of this Order, as prayed for.